Oliva Supermarkets LLC and RL Markets l LLC, as alter egos and/or single employer

National Labor Relations Board - Administrative Judge Opinions

Dec 18, 2015

22-CA-130315 (N.L.R.B. Dec. 18, 2015)

JD(NY)-42-15
Whippany, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
OLIVA SUPERMARKETS LLC AND
RL MARKETS I LLC, ALTER EGOS
and Case 22–CA–130315
UNITED FOOD AND COMMERCIAL WORKERS,
LOCAL 464A
Nancy Slahetka, Esq. and Robert Mulligan, Esq.
for the General Counsel.
Victor Laracca, Pro Se
for the Respondent Oliva Supermarkets.
Roberto Laracca, Pro Se
for the Charging Party RL Markets.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to charges filed on June 5, 2014,
by United Food and Commercial Workers, Local 464A (Union or Local 464A), the Director for
Region 22 of the National Labor Relations Board issued a complaint and notice of hearing on
December 30, 2014, alleging that Respondent Oliva Supermarkets herein called (Oliva) and
Respondent RL Market’s, LLC herein called (RL) (Jointly Respondents) were alter egos and had
violated Sections 8(a)(1) and (5) of the Act by failing to recognize and bargain with the Union,
and by repudiating the collective bargaining with the Union and refusing to apply the terms of
the collective-bargaining agreement to employees, at Respondents’ Whippany, New Jersey
location. A trial was heard before me in Newark, New Jersey, on March 17, 18, 19, and 20,
2015. Briefs have been filed by General Counsel and Respondents, and have been carefully
considered. Based on the entire record, including my observation of the demeanor of the
witnesses, I make the following.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent Oliva is a limited liability company (LLC) with an office and place of
business in Cedar Knolls, New Jersey, where it operated a retail grocery store, until February of
2014.
Since May 2014, Respondent RL Markets an LLC with an office and place of business in
Whippany, New Jersey, has been operating a retail grocery store.
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Based on a projection of its operations since May 4, 2014, at which time Respondent RL
Markets commenced its operations at its Whippany, New Jersey facility, Respondent RL
Markets will derive gross revenues in excess of $500,000 in conducting its operations.
5
During the same period of time, Respondent RL Markets has purchased and received at
its Whippany, New Jersey facility, products, goods, and materials in excess of $5000 from other
enterprises located within the state of New Jersey, each of which other enterprises has had
received these goods from points outside the state of New Jersey.
10
It is admitted and I so find that Respondents have been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted and I so find that the Union has been a labor organization within the
meaning of Section 2(5) of the Act.15
II. FACTS
A. Background
20
Oliva operated a downtown supermarket in Cedar Knolls, New Jersey, from 2004 until
the store closed on February 22, 2014. On May 7, 2014, RL Markets opened a supermarket
named Farmtastic in Whippany, New Jersey (Whippany Stores or Farmtastic), which is located
three miles away from the Cedar Knolls store, both located in Hanover Township, New Jersey.
V&V Supermarkets (V&V or Lake Hiawatha) operates another Foodtown supermarket in Lake 25
Hiawatha (Lake Hiawatha store), which has been opened since 2001.
United Food and Commercial Workers Local 464A represents a unit of employees
employed in the meat, poultry, fish, appetizers, and deli departments of Foodtown supermarkets
within a certain jurisdictional area of New Jersey and New York. Other employees at the Cedar 30
Knolls and Lake Hiawatha stores are represented for the purpose of collective bargaining by
Local 1262, United Food and Commercial Workers (Local 1262). The most recent contract is
effective from March 18, 2012, through June 18, 2016. Oliva and V&V are parties to this
contract. RL Markets has not recognized the Union and has not applied the contract to the
bargaining unit members working at the Whippany store, even though the Whippany store is 35
located within the Union’s jurisdiction.
B. CORPORATE STRUCTURE AND MANAGEMENT OF COMPANIES
Victor Laracca owns a 99 percent interest in Oliva and his wife Josephine owns a 1 40
percent interest. Victor Laracca is also the owner and president of V&V (V&V is a corporation).
See Rider page 14 (Roberto Laracca, Victor Laracca son, is listed as the Certificate information
on RL Markets as the sale owner of both entity. Roberto Laracca was the store manager at V&V
the Lake Hiawatha store, separated by V&V by Victor Laracca.)
45
Victor Laracca has been the owner of a number of supermarkets since 1977. He
purchased his first supermarket located in Orange, New Jersey, and it was a Foodtown store.
At that time, Victor agreed to recognize the Union, which had represented the employees in the
Local 464 A bargaining unit, and to apply the collective-bargaining agreement in existence at
the time. Victor sold that store, and in partnership with his brother, purchased another 50
Foodtown supermarket located in Newark, New Jersey, in 1982. Once again Victor Laracca
JD(NY)-42-15
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agreed to recognize the Union and apply the Union contract to the employees in the bargaining
unit at that store.
In 2001, Victor Laracca purchased the Lake Hiawatha store, which was a Grand Union
store that had gone bankrupt. Grand Union had the same contract with Local 464A, as the 5
Foodtown markets. Victor opened the store as a Foodtown and agreed to recognize the Union
and apply the contract to the bargaining unit employees at that store, under V&V.
In 2004, Victor Laracca bought the Cedar Knolls store, which was also purchased
through the Bankruptcy court. At that time he also agreed to recognize the Union as the 10
collective-bargaining representative for the employees in the bargaining unit, and to apply the
contract to them.
Adam Shapiro was the store manager at the Cedar Knolls Foodtown. Shapiro had been
employed at the store, which had been a Foodtown prior to the bankruptcy. Shapiro had been a 15
member of local 1262 when he was employed by the prior Foodtown market. After Shapiro’s
employment started at Oliva as manager, he was not a Local 1262 member for a number of
years. However, Shapiro, at some point went to Victor Laracca, and asked if he could go back
into the union (Local 1262) so he could accrue pension credits. Laracca said okay and Shapiro
rejoined Local 1262. Thus from that time on Shapiro also received health benefits thru Local 20
1262’s plan, although he was the manager at the Cedar Knolls store. After the Cedar Knolls
store closed in February of 2014, as will be described in more detail below, Shapiro eventually
was hired as manager of the Whippany, Farmtastic store, owned by RL Markets, which opened
in May of 2014. At the Farmtastic store, Shapiro received health insurance under the Company
plan, which covers management of V&V and the family members of the Laracca family. This 25
includes Victor Laracca, Roberto Laracca, and Daniella Laracca, who is Victor’s daughter and
Roberto’s sister. Daniella Laracca was employed by Oliva as a bookkeeper and worked under
the supervision of Patty Hicks, who was the bookkeeper for both V&V and Oliva, as well as RL
Markets. When RL Markets opened the Farmtastic store in Whippany on May 7, 2014, Daniella
Laracca was hired to run the Juice Bar at the Whippany store; she continued to assist Hicks as 30
a bookkeeper as well at the Whippany store.
The store at Whippany had originally been a Pathmark supermarket, which had closed
and was vacant for some time, when Roberto Laracca had the idea to open a store at the
location sometime in 201. He discussed it with his father, Victor who initially was skeptical, but 35
eventually agreed that Roberto should pursue it and agreed to help Roberto with financial and
operational matters concerning the store. On December 15, 2011, RL Markets I LLC was
formed. The company’s manager listed on the certificate of formation was Roberto Laracca.
Roberto Laracca was the only member of the LLC listed, and he signed the operating
agreement.40
On December 15, 2011, RL Markets executed a 15-year lease with Pine Plaza
Associates for the Whippany store. Victor participated in the negotiations with the landlord,
which is guaranteed by the assets of V&V and Oliva, and personally guaranteed by Victor and
Josephine Laracca. Under the terms of the lease, monthly payments were $35,000, plus CAM 45
charges and taxes. A CAM charge covers maintenance of the shopping mall, and is based on
the size of the tenant. Since RL Markets was the biggest store in the shopping center, it paid
the most CAM charges. According to Roberto Laracca, RL Markets total monthly payments
under the lease, including CAM charges came to $60,000 per month.
50
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The lease also included a clause stating that the “tenant shall operate the business
under the trade name Foodtown.” It further provides that the tenant has 15 days from execution
of the lease to obtain approval from Board of Foodtown to operate in a Foodtown supermarket
at the premises, and in the event that the tenant fails to obtain such approval and provide
landlord evidence of same, either party may terminate the lease without penalty.5
As part of the negotiations for the lease with the Pine Plaza, RL Markets agreed to
purchase shelving and cases for all departments such as seafood, deli, produce, dairy, frozen
foods, which had been left in the store by Pathmark. RL Markets agreed to pay between;
$35,000-$50,000 for this equipment.10
Funding for the operations of RL Markets came primarily from assets of Victor and
Josephine Laracca and the V&V and Oliva businesses. Additionally, RL Markets received
$100,000 from Michael Levine a personal friend of Roberto Laracca in April of 2013. This was
according to Roberto Laracca a loan, which was supposed to be paid back. There is no written 15
documentation of the loan, which has not been paid back.
In January of 2013, Victor and Roberto Laracca met with Michael Donofrio, managing
director of member business services and lending for Affinity Federal Credit Union (Affinity).
They met at the Whippany location, and discussed financing for the store operations. Donofrio 20
looked around the store, asked what the equipment was worth. Victor explained that it was an
existing market, and a lot of the equipment can stay there, and there was value in the store.
Donofrio asked the Laraccas “how much money do you need?” Victor asked for $600,000
agreed that he would cosign personally for the loan, along with RL Markets and that his other
companies, V&V and Oliva would be guarantors. There was also discussion of combining the 25
amount with refinancing of Oliva’s existing loan with Mariners Bank.
Ultimately the negotiations resulted in a tentative agreement for a loan of $600,000.
Thus was memorialized in a document dated June 1, 2012, signed by Donofrio, entitled
conditional loan sheet. It reflects that the agreement was for a $600,000 revolving line of credit, 30
and the purpose of the loan was “to organize assets and initial inventory for a new supermarket
to be opened in Whippany, New Jersey. This line shall be termed out under a combined
refinancing of existing debt held by Mariners Bank and this line of credit.”
The letter was addressed to Victor Laracca, managing member, RL Markets. The letter 35
states that the coborrowers of the business were RL Markets and Victor Laracca, individually
and guarantors were Oliva and V&V.
Thereafter according to Victor Laracca, he made numerous calls to the bank trying to
find out what was happening with the loan, but got no response from the bank. At one point, 40
Laracca was told that Donofrio had been fired, and at another point, Laracca dealt with Ms.
Nunez from the bank who came to the store again, looked at it, and informed Laracca that the
bank was still willing to do the loan, as per Donofrio’s June 1, 2012 contract loan sheet.
However, Laracca assorts, that the bank never got back to him, and he subsequently 45
was informed that Ms. Nunez had left the bank as well.
At that point, according to Laracca, he decided to go elsewhere to obtain the funds, and
as he testified “we went to Mariners Bank.” In that regard they had an outstanding loan of
$850,000 to V&V, Oliva and Victor and Josephine Laracca individually secured by the three 50
properties in New Jersey owned by the Laracca’s, in existence at that time. Victor went to
JD(NY)-42-15
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Mariners Bank and restructured that loan and obtained a loan of $400,000 to RL Markets. This
loan was guaranteed individually by Victor and Josephine Laracca, and secured by the assets
of V&V and Oliva, and by mortgages on these properties owned by Victor and Josephine.
The loan agreement with Mariners Bank and RL Markets was executed on December 5
17, 2002, and the $400,000 was given to RL Markets and was used by RL Markets primarily to
pay bills to the contractors for construction of the store, which had started in early 2012, and
continued until shortly before opening in May of 2014.
The prior payments to Coldstat for construction work at the Whippany store on behalf of 10
RL Markets were made directly by Oliva to Coldstat. Similarly, Oliva paid bills directly on RL
Markets behalf to other vendors and contractors, including Evans Architects for design work on
the store, payments to A&J Refrigeration for work at the store, payments to Marca Lopez for
floor cleaning and to JBR Telecom for telephone service at the store.
15
Additionally, Oliva made payments on behalf to Pine Plaza (the landlord) for RL Markets
Lease, and directly made the monthly payments on RL Markets loan to Mariners Bank from its
inception in December of 2012, until May of 2014 when the Whippany store opened.
The Pine Plaza lease had a 4-month grace period, so no lease payments were due for 20
the first 4 months. RL Markets then commenced paying the landlord for lease payments for 3
months. However, according to Roberto, RL Markets could not afford to continue these
payments after that because the Whippany store was still not yet open, and generating no
money and he could not “tap into his father’s company anymore.” On February 26, 2015, after
an eviction proceeding brought by the landlord, RL Markets entered into a settlement with Pine 25
Plaza, providing for the payment of $1,483 million of back rent, in accordance with schedule
of payments per month, including a payment of $39,700 by 1/23/15. The settlement was signed
by Marco Laracca Esq., as tenant’s attorney, and signed by Victor Laracca, as tenant (RL
Markets).
30
In April of 2014, shortly before the Whippany was about to open it was necessary to
obtain funding for the purchase of groceries from C&S Wholesale Grocers, Inc. (C&S) to stock
the store. On April 24, 2014, a promissory note was signed for a loan of $350,000 to RL
Markets and V&V, which was personally guaranteed by Victor and Josephine Laracca and
signed by a mortgage on a condominium in Hoboken, New Jersey, jointly owned by Josephine 35
and Daniella Laracca. Victor Laracca also gave Roberto between $50,000 and $75,000 before
the opening of the store to purchase equipment.
As noted above Patricia Hicks was the bookkeeper for all these entities, V&V, Oliva, and
RL Markets. Hicks initially worked at an office at the Cedar Knolls, Oliva store, until that store 40
closed. During this period of time she performed bookkeeping functions for both V&V and Oliva,
although she was paid only by Oliva. Once Oliva closed in December of 2014, as will be
described more fully below, Hicks then began receiving pay from V&V.
Hicks began performing bookkeeping functions for RL Markets once RL Markets began 45
operating, years before the store actually opened. Thus Hicks completed the financial
documents necessary for RL Markets to operate, such as opening bank accounts, setting up
credit card accounts, and applying for various licenses. Hicks did not receive any salary from
RL Markets at any time. Hicks also was signing witness on RL Markets patronage agreement
with Allegiance and RL Markets loan with V&V.50
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After Oliva closed the store in February of 2014, Hicks moved to the Whippany store of
RL Markets and worked part of that office, as bookkeeper for all three Laracca entities. Victor
Laracca, who also had an office at Oliva’s Cedar Knolls location, also now has an office at
Whippany. Neither Victor, Oliva, or V&V pay any rent to RL Markets for use of the Whippany
office, even though Victor and Hicks conduct business for V&V and Oliva from that office.5
While Hicks was performing bookkeeper functions for all three entities, she would
allocate monies of the bank accounts at her direction often without authorization or approval
from either Victor or Roberto. At times, neither Roberto and Victor knew from which account,
Hicks made payments from to pay bills.10
Hick’s duties for all three companies were to process payables, pay vendors for foods
and services, keep files and records, and allocate money between the various banks accounts
of all three companies. In this regard, Hicks trained and supervised Daniella Laracca as a part
time bookkeeper at the Cedar Knolls and the Whippany stores.15
Bank accounts for V&V, Oliva, and RL Markets were opened at the TD Banks and
Santander Bank, where Hicks and Victor use authorized signers, for the Oliva and V&V
accounts, Roberto and Hicks use authorized signers of the RL Market Accounts.
20
Accounts were opened with Affinity Credit Union for Oliva, V&V, and RL Markets in an
attempt to secure a loan through Affinity. After RL Markets failed to obtain approval for financing
through Affinity, Oliva and V&V accounts at Affinity were closed. Additionally, both RL Markets
and Oliva use the same accountant and insurance agent. When the Whippany store opened, it
used the same payroll service as the Cedar Knolls and Lake Hiawatha store. At some point 25
after the Cedar Knolls store closed, the payroll provider for the Whippany and Lake Hiawatha
stores was changed.
Victor Laracca managed the planning and construction work over a more than 2-ear
period at the Whippany store. Victor Laracca was the main contact person with the contractors 30
used by RL Markets, as well as with township of Hanover. For example in construction permits,
filed with the Hanover Township, for work at the Whippany Supermarket by Breeson Protection
Company for the installation and electrical work on existing fire alarms and installation of new
burglar alarm, Victor Laracca is listed as the owner.
35
Victor Laracca and Roberto Laracca met with representatives of Evans Architects and
Lind International Design in early 2012, to formulate a design plan for the Whippany store. The
proposed alteration plan filed with Hanover Township filed by Evans Architects lists the
proposed alteration for a Super Foodtown at 831 Route 10 East, Whippany, New Jersey as the
address. Emails in February of 2012 amongst Victor Laracca, Lind Design, Ion Sarkasian, from 40
Coldstat Refrigeration, the General Contractor evidences that the store at that point, was being
referred to as Super Foodtown.
For example on February 21, 2012, Patti Hicks sent an email to Ion Sarkasian of
Coldstat, on behalf of Victor. The subject’s Whippany and it is entitled proposed plan. The 45
message reads “Ion, Attached is the latest plans for the Whippany store. I like them. What do
you think? Victor”
For example on February 28 at 2:03 pm, Sam Barmans from Lind Design sent an email
to Victor Laracca, subject Super Foodtown, Whippany, New Jersey, wherein he states: “Hi 50
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Victor, Attached is a copy of the revised plan that has been updated as per our meeting last
Friday.”
The next morning, February 29, 2012, Barman sent an email to Sarkasian, at 9:31a.m.
Subject – Super Foodtown, Whippany, New Jersey, which reads, “Hi Ion, attached is a copy of 5
the fixture plan that was sent to Victor yesterday.”
At 11:01 on February 29, 2012, Hicks sent a similar email to Sarkasian, attaching the
revised plan for the store, which reads; also refers to the store as Foodtown, Whippany New
Jersey, and the email reads “Ion, attached is revised fixture plan.” 10
On March of 2012, Roberto and Victor met again with the architect, and informed him
that the new store would be called “Farmtastic.” Thereafter, the architect prepared a design
plan, with the logo “Farmtastic Market” on the store. Interestingly, on this plan, the document
states “client, super Foodtown Whippany, N.J., and Foodtown Whippany, N.J. elevations.” 15
On March 28, 2012, Sarkasian emailed Hicks, at 8 a.m. asked, “Could you get Victor to
give you the name he wants to use on the new paperwork for the new store.”
Hicks responded at 12:01 p.m. to Sarkasian. She stated, “Ion, the company name is RL
Markets I, LLC. Responsible party is Roberto Laracca store track name is Farmtastic Markets. 20
Mailing address is 4 Lafayette Court, Whippany, N.J. 07981.”
The construction and renovations at the store, by Coldstat began work in 2012, and
continued through the end of 2013. RL Markets revised the construction plans to include loans
for additional building and electrical worker on a Pharmacy in October of 2013.25
On January 22, 2014, Julia Lee Piscitelli of Hanover Township Health Department sent
the following email to Sean Donlon, a Hanover Township official, with the subject, Farmtastic
Market. It reads; “Sean, a pre-operational inspection was conducted at Farmtastic on 1/21/14.
Health Department has approved opening. I specifically advised Victor LaRocca that all other 30
departmental approvals were required before he opened.”
On January 23, 20014, Hanover Sewerage Authority (HAS), determined that I would not
approve the occupancy of the Farmtastic Store until problems were resolved, relating to grease
traps and separation of wastewater streams. 35
Over the next several months emails and plans were sent between Mike Wynne, official
of HAS, Kevin Antonelli, a representative of Pine Plaza, the landlord, Hicks, Sarkasian, and
Evans Architect’s, recording the plans for Farmtastic to meet HSA’s requirements and obtain
approval for occupancy. For example on February 27, 2014, Antonelli sent an email to Wynne, 40
with copies to Hicks and Sarkasian, with subject, “Pine Plaza, Farmtastic sink approval letter.” It
reads, “Mr. Wynne, per your conversation with Victor, I am attaching our letter of approval for
the sink in the coffee shop.”
Meanwhile Victor and Roberto met with the ex-mayor and the Building Department in an 45
attempt to get temporary permits.
On December 30, 2014, Roberto’s wrote to the Building Department requesting
permission to allow stocking of the Whippany Store, while the necessary repairs were being
made to correct the deficiencies uncovered in the inspections. He noted the store will not be 50
JD(NY)-42-15
8
open to the public until the corrections are completed.
This request was granted, and after Farmtastic received its temporary permits on March
3, 2014, it began to stock the store with merchandise.
On May 2, 2014, HSA wrote to RL Markets, stating that the grease trap and 5
maintenance requirements had not yet been reviewed by HSA’s Manager, and that needed to
be done, plus payment of supplemental inspection fees, before occupancy can be authorized.
On May 5, 2014, Wynne sent an email to Antonelli, reporting that Farmtastic paid
their inspection bill and on appointment is being set up tomorrow to review the grease trap OBM 10
requirements.
On Tuesday May 6, 2014, Antanelli emailed Wynne as follows, “re-Farmtastic.”
“According to UPS they delivered the check this morning. Can you please advise if this clears
our part up on Victor opening tomorrow and is he in the clear on his matters with you also?” 15
Farmtastic opened for business on May 2, 2014.
Sharon Sheppard has been employed at the Lake Hiawatha store for 12 years. She was
the deli manager, and was and is a member of the Union. Sheppard testified that about 3 years 20
before the Whippany store opened, she heard that the Laracca’s were opening a store in
Whippany, New Jersey. Sheppard assumed that the store was going to be another Foodtown,
since the Laracca’s already had two Foodtown’s (V&V and Oliva). Shorly thereafter, Sheppard
spoke to Roberto Laracca, who was at the time, the store manager at the Lake Hiawatha store.
Sheppard said to Roberto, that she had heard that they were opening a new store in Whippany. 25
Roberto answered, “yes we are.” Roberto did not say, nor did Sheppard ask, whether the store
would be a Foodtown, but Sheppard assumed that it was going to be a Foodtown, since both
the Cedar Knolls and Lake Hiawatha stores owned by the Laracca’s, were Foodtown.
About a year later, Sheppard had another conversation with Roberto, and she asked him 30
if the new store in Whippany is going to be a Foodtown and is it going to be nonunion? Roberto
replied that the store is not going to be a Foodtown, and it will not be a union store.
Shortly after that conversation, Sheppard found out that the name of new supermarket
was going to be Farmtastic, from one of the butchers working at Lake Hiawatha, who informed 35
her that his son had made the sign for the Farmtastic store. This conversation according to
Sheppard; was about a year before the Whippany store opened.
Over the next year, Sheppard had several conversations with Roberto about the
Whippany store. She would ask him how things were going with the new store, and how much40
sooner until it opens. Roberto responded that “we ran into problems, and it’s going to be open
soon.” During these conversations, Sheppard would ask Roberto if he was going to be leaving
the Hiawatha store, and go over to the Whippany store, because she liked Roberto, and liked
him as manager at Lake Hiawatha. Roberto initially answered that he did not know if he was
going to go over to Whippany and that they were thinking about it. 45
About 6 months before the Whippany store opened, Sheppard asked Roberto again, if
he was going over there? Roberto replied yes, “it’s my store, I’m going over there.” Roberto did
not say specifically if he was going over there as owner or manager.
50
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Victor Laracca lived in Whippany, New Jersey, for many years coached soccer for many
years, and was known by a lot of people in Whippany. Victor testified that 40 percent of the
people in Whippany knew me. In fact, Victor further testified that one of the reasons why the
Cedar Knolls store was taken over by him, was because he received over 60 phone calls from
people in Whippany, telling him that the store is in Cedar Knolls was bankrupt, and asking him 5
to please open up that store. Victor stated that he believed that the Cedar Knolls could do well,
so he decided to take a shot “doing” the store.
In early 2013, Mike Piscitelli, business agent for Local 464A during visits to the Cedar
Knolls, store was informed by Cedar Knolls employees, that customers and vendors were telling 10
these employees that their store was closing and that they were going to be going over to the
Whippany location.
Prior to Thanksgiving of 2013, customers at the Cedar Knolls Store, told employees
there, including Carol DiMarsico, who was employed at the Cedar Knolls Store as a deli clerk, 15
that the store was closing and the employees would be moving to Whippany. DiMarsico told the
customer that we’re not moving, we’re staying here. Subsequently, DiMarsico spoke to the
same customer again, who again informed her that “You’re going to Whippany.” DiMarsico
replied why are we going to Whippany, we have no inkling of going to Whippany.”The customer
informed DiMarsico that at a senior citizen meeting in Hanover township, it was announced that 20
the Cedar Knolls Foodtown was moving to Whippany on Route 10.
As I have detailed above, the name for the Whippany Store was not chosen until late
March of 2012. Initially, the store was going to be a Foodtown, as evidence by the initial
architect plans and documents for the store. However, in March it was decided that the store 25
would not be a Foodtown, and that it would be called Farmtastic.
The collective-bargaining agreement that was in effect when the Cedar Knolls Store
closed between the Union and Oliva, was negotiated in March of 2012. The negotiations were
conducted by representatives of Allegiance Retail Services, which is a coop, consisting of 30
members of Employers, primarily Foodtown Stores, bit also including other supermarkets, and
brands.
David Maniaci, Chairman and CEO of Allegiance, testified about Allegiance, as well as
detailing the bargaining history with the last two unions, and the last contract negotiations, that 35
led to the collective-bargaining agreement in existence between Oliva and Local 464.
Allegiance is a retail cooperative that offers services to independent operators of supermarkets
in New York and New Jersey. It has about 23 members, with about go supermarket locations
owned by the members.1 Allegiance provides marketing advertising, technological and
operational support, as well as full line of Foodtown private label products to its members. 40
Allegiance prepares weekly circulars for all of its members, and members honor the same club
card for the purpose of customer discounts.
Allegiance stores have the option of using the Foodtown banner and or selling Foodtown
private label products but they are not required to do either. About 80 percent of the stores in 45
Allegiance are Foodtown Stores, and the rest are other supermarkets. The non Foodtown
Stores use the same circulars prepared by Allegiance, which includes Foodtown products, and
a store must belong to the Allegiance Coop in order to sell Foodtown products or to operate

1 A member of the members of the Coop to operate more than one supermarket location. For example Maniaci
himself operates three Foodtown Supermarkets located in New Jersey. Victor Laracca, as noted above owned
operated the Foodtown Markets in Cedar Knolls and Lake Hawartha, New Jersey and was a member of the Coop.
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under the Foodtown banner.
The non Foodtown Supermarkets that are members of the coop, sell Foodtown
products, but are not Foodtown Stores and do not use the Foodtown banner. These
Supermarkets are mostly independent operations with names such as Freshtown, Uncle 5
Giuseppe’s, Labella Marketplace, Orchard Fine Foods, Big Deal Food Market, as well as
D’Agostino’s stores in New York City.
According to Maniaci, previously, the Coop was not called Allegiance, and was
composed of only members of Foodtown Stores. Subsequently a number of Foodtown stores 10
went out of business or were brought out by Shop & Stop. Thus, Allegiance was formed, and
other non Foodtown Supermarkets, were permitted to join the Coop.
Collective bargaining for the stores was conducted by the Coop’s representatives with
both Local 1262 and Local 464. In prior years negotiations with the Unions were conducted 15
along with representatives from other large supermarket chains, such as Shop Rite, Pathmark,
and Grand Union. The contracts were essentially the same, for all supermarkets, with some
minor deviation.
Maniaci testified as noted above, that the number of Foodtowns had substantially 20
decreased, and by the last round of negotiations, the number of Foodtown stores in New Jersey
had been reduced to 12. All of the foodtown stores were bound by the previous contract.
According for Maniaci, if an owner opened up a new store under the Foodtown banner, it would
be bound to apply the contract to employees at the newly opened store.
25
According to Maniaci, the individual members gave notice to both Local 1262 and Local
464, that they no longer wanted to negotiate together as Foodtown, but that they wished to
negotiate separately with the Unions. Local 1262 accepted the notice, and according to Maniaci
negotiated separate contracts with each of the stores under their own Company name, and not
under Foodtown. 30
However, Local 464 did not accept the notice, and according to Maniaci, the attorney
that represented the Coop missed the deadline for filing by a day or so. Therefore, the attorney
advised Maniaci that for the last contract they had to negotiate collectively for a contract
covering all the Foodtown stores. 35
The negotiations resulted in a memorandum of agreement, for a new contract, and was
executed on April 12, 2012. The MOA reflects that the terms of the prior agreement would be
continued, with the exception of certain changes set forth in the MOA in various areas, such as
wages, vacations, pension welfare benefit payments, and contract language. 40
The effective dates of the new agreements was effective March 18, 2012, and expiring
on June 18, 2016.
While the MOA was signed by a representative of Foodtown Supermarkets, it also stated 45
that it covers all individual employers trading as Foodtown for two companies, NEI and V&V.
Initially, Victor Laracca did not wish to be bound by the MOA, and the new contract, for
his two companies, V&V and Oliva, and he complained to Maniaci that the contract was too rich
and that he did not want to go along with it, because he thought that Maniaci, should get a 50
JD(NY)-42-15
11
better deal. Victor Laracca testified that “we could not afford it, we still can’t.”
During the course negotiations for this contract was the MOA, Victor Laracca had
discussions with Mike Piscatelli, business agent for Local 464 in Laracca’s office at the Cedar
Knolls Store. Laracca complained to Piscatelli that the agreement negotiated with Foodtown, 5
was essentially the same contract that the Union has with Shop Rite, and Victor felt that
Foodtown should not have the same type of contract as Shop Rite; particularly with regard to
benefits and raises.
After Victor told Maniaci that his companies, (V&V and Oliva) did want to go along with 10
the new contract as agreed upon in the MOA. The MOA was signed excluding Victor’s
companies from the agreement. After discussing the matter with his attorney, Victor
reconsidered and decided to go along with the contract negotiated as set forth in the MOA,
signed on April 12, 2012. Thus on April 13, 2012, Victor Laracca sent out a letter dated April 13,
2012. It reads: “Re. V&V Supermarkets aka Foodtown Hiawatha, Foodtown Cedar Knolls.” 15
“Please accept this letter as confirmation that the above named companies accept the
collective bargaining agreement between Local 464A and Foodtown effective March 18, 2012
through June 18, 2016.” The letter was signed “Victor Laracca, President.” As noted above
Oliva abided by the terms of the contract until it closed in the Cedar Knolls Store in late 20
February of 2014.
Maniaci testified that he was informed by someone at the Allegiance Coop that Victor’s Cedar
Knoll’s Store is going to close and that Roberto is going to open up a store in Whippany at the
old Pathmark. He was also told that the Whippany Store was not going to be a Foodtown. He 25
and the other Coop member who informed Maniaci about this decision discussed that they were
more surprised that the new store was not going to be a Foodtown, but no reason was given for
the decision, other than Roberto wanted to open the store up as a Farmtastic Supermarket.
Maniaci was disappointed that the new store would not be a Foodtown, but he did not discuss it
with Victor or Roberto. 30
Both Victor and Roberto admitted that they were aware, as Maniaci testified that if the
Whippany Store was opened as a Foodtown, the new store would be obligated to recognize the
Union and apply the terms of the contract to the employee’s employed in the categories covered
by the Local 464 contract. 35
Roberto testified also that he could not afford the Local 464 contract, but also insisted
that the decision to use the Farmtastic name for the new store, was not based on a desire to
avoid the union contract, but rather because he did not want to be a Foodtown and wanted a
new, fresh name, with emphasis on organic products for his new store. 40
As I have detailed above, from the time that RL Markets was formed, until it opened the
Farmtastic supermarket in May of 2014, the market was not opened for business, and RL
Market had no income. However, funding for RL Market for construction costs, lease payments,
fees to architects, and purchases of supplies had to come from somewhere, and it come from 45
Oliva, V&V, and the personal guarantees from Victor, Josephine, and Daniella Laracca and their
properties. Although, Roberto Laracca testified that the funds provided to RL Markets by V&V,
Oliva and the Laracca family, were loans, there is no documentation memorializing an
agreement for repayment of any of these monies, and there is no established time for
repayment. Further, there is no requirement that RL Markets is required to pay any interest to 50
Oliva, V&V, or the other Laracca family members for these alleged loans. Oliva’s 2013 tax
JD(NY)-42-15
12
return did list as an asset a $548,448 loan to RL Markets.
Victor Laracca testified concerning the financing for RL Markets, and the loans that were
taken out by RL Markets, guaranteed by V&V, Oliva, and the Laracca’s personally, as well as
their properties. He testified about the loan from Marimer’s bank; “So anyway, we took the loan 5
and we pursued the construction for RL Markets Farmtastic Supermarket.” Testifying about his
problems obtaining approvals from the Hanover Building Department to open Farmtastic Victor
stated, “we had this problem with sewerage and so… I said, look, Roberto, my son we have no
more money.” Victor then stated that “[w]e spoke to the building Department and said look, can
you give a, what do you call it, a permit for this right away?” He continued, “. . . now we have 10
the temporary Co. . . and C&S does not want to delivery [sic] groceries.” After Victor went
“back and forth and back and forth for a few weeks” trying to get a loan from C&S for the initial
inventory at Farmtastic, Victor’s wife, and daughter put up their condominium as collateral to
procure the loan. Victor admitted that Roberto did not have the ability to secure financing
without help. In his testimony, Victor summarized the “help” that Roberto received from his 15
family:
So at this point, it RL Markets gets in big, big trouble, which it’s already in,
I will lose everything that I have. I’ll tell you what I have as collateral. 20
I know it’s in the files, but I want to explain.
We have – I have a house, my wife has a house in Parsippany that we’ve
had. That’s been put in as collateral, she put it in as collateral. There’s
a piece of property in Parsippany also and that was put in collateral. We 25
have the shore house. That’s been put in collateral. And the two
businesses that we had at the time, those were put in collateral.
My daughter has also put in her house or a town house in collateral. So
those properties will probably all be gone if he – if they foreclose on him, 30
everything will be gone. There’s no equity right now because everything
is being mortgaged, basically, there’s nothing.
And to be quite honest with you, I’m – right now I’m thinking the only
solution I have is to try and sell V&V store, get some funds to pay off 35
whoever I’ve got to pay off to get them off my back and see what I can do
because I can’t – if everybody starts foreclosing on me, we’ll be out of
business very quickly.
C. THE CLOSING OF OLIVA 40
Victor Laracca testified that he had no intentions of closing the Cedar Knolls Store, and it
was always his intention to continue operating that store, even after the RL Markets Whippany
store opened. According to Victor, the closing of the Cedar Knolls store was solely due to his
failed attempts to renew the lease for the store. In that regard, the lease for the store was 45
between Shop & Stop and the landlord. After Shop & Stop left the store, a Foodtown operator
Mickus Brother’s took over the store, and then took over the lease. When that Foodtown
operator went into bankruptcy, and closed the store, Oliva purchased the assets of the store,
and became a sub-lease on the lease, between Shop & Stop and the landlord. The lease was
set to expire in January of 2014. 50
JD(NY)-42-15
13
In June of 2013, Victor contacted Victor Spina, a representative of the landlord who
managed the property to discuss negotiations for a new lease. This was to be a lease directly
between Oliva and the landlord for the property.
On September 17, 2013, Oliva emailed Spina a proposal for a lease of the property at 5
Cedar Knolls. The proposal was for a 5-year lease with payments ranging from $31,000 to
$34,564.73 per month, plus ranging percentage of the store’s annual sales. Victor testified that
he spoke to Spina several more times over the next few months, and Spina finally informed him
that his offer was not enough, but did not come back with a counter offer.
10
In a subsequent conversation with Spina, Victor was apparently told that the landlord
was not interested in a long-term lease agreement, but might be open to an extension past the
January 2014 expiration. Victor sent an email to Spina, dated October 25, 2013, summarizing
both parties’ positions. It reads, “As per our previous conversation regarding the lease for
Foodtown at the Cedar Knolls Plaza, you have indicated that your firm is not interested in a long 15
term lease agreement, but that you might be open to an extension past the January 2014
expiration. I am interested in an extension for as long a period as your firm is willing to extend.
I previously gave a lease proposal of $31,000 per month. If this is not an acceptable rate,
please provide a rental rate that you will accept or call to discuss, 473-610 16-6.”
20
According to Victor he had heard that the landlord was negotiating with Walmart to put a
“Super Center” into the mall, which includes a supermarket. Renewing Victors lease would
have contractually precluded the landlord from leasing the space to Walmart in the same mall.
Victor testified that he was not sure that the deal with Walmart would go through, so he was
hoping that on a month-to-month extension with the landlord would lead to a long-term lease, in 25
the event that the Walmart deal was not agreed upon, Victor testified that the landlord was
refusing to renew the lease for Rite-Aid, the tenant at the mall in furtherance of the same desire
of the landlord to have Walmart on a superstore which would also include the space occupied
by Rite Aid, as well as the space occupied by Oliva. Victor further testified that Walmart
decided not to open the superstore, and ultimately both Rite Aid and Oliva have now left the 30
mall, and both properties are still vacant and unrented as of the close of the hearing.
On December 19, 2013, Victor sent the following email to Spina.
“I am prepared to pay 45,000.00 per month including taxes and charges. This is pushing to 35
considering what is transpiring in the cases please respond.”
According to Victor, shortly after this offer was made, he had a pleasant conversation
with Spina, during which Spina on behalf of landlord, agreed to 45,000 per month offer for an
extension. However this alleged that agreement was never resulted to writing.40
On January 24, 2013, the Respondent received a letter informing it that it need to
vacate the premises on January 31, 2013. Victor asserts the he then had a conversation with
Spina and asked him what had happened with the lease, saying to him “I thought we had a
deal.” Spina informed Victor that the owner decided not to do it. Victor testified that he 45
discussed with Spina an amount of $50,000 per month basis, with 2-month notice to vacate, in
order to properly remove equipment and product. According to Victor, Spina agreed to this
proposal, which Victor summarized in an email to Spina as follows: “As per our recent
agreement I will pay $50,000 per month on a month-to-month basis. I agree to the present
lease terms so far as cement equipment and products, any damage caused by the removal of it 50
will be repaired. The rental of $50,000 should help to defer the cost of any other removal
JD(NY)-42-15
14
issues. I would like 2 months’ notice if possible when I need to vacate the premises in order to
remove equipment and products” This alleged agreement was never reduced to writing.
Subsequently, Oliva was subject to an eviction proceeding. During this proceeding the
Judge ordered that Oliva vacate the premises by March 31, 2014, and to pay 50,000 per month 5
rent until that date.
In Mid-February of 2014, Oliva posted a sign in its store that the store will be closing in
February 22, 2014. The store closed on that date. Over the next month Oliva spent time taking
out the equipment and cleaning up the store, and left the premises on March 31, 2014, as per 10
the Judge’s order the eviction proceedings.
Frantz Hanley is the Recorder for local 464. That position is the second in command at
the Union Local, under the Union’s president. Hanley telephoned Victor LaRacca in early
January of 2014. Hanley told Victor that he had heard that Victor was opening a new store in 15
Whippany. Victor replied that there would be a new store opening in Whippany, but it would be
his son Roberto’s store, and Roberto would be the owner. Hanley asked Victor whether the
Whippany supermarket would have meat, deli and seafood departments. Victor replied that the
store is going to be more like a farmers market, but that it would have a meat department, deli
department, and a seafood department.20
Hanley responded that the Union expects that the deli, meat, and seafood employees at
this store will be represented by the Union. Victor replied that “we do not intend to and this
store is not going to be union. It is not our intent to have this store union. We can’t afford it”
Hanley answered that according to the collective-bargaining agreement when you open a new 25
store, just like he’s done in the past when he purchased stores, they are, through accretion, they
automatically become union stores.
Victor repeated that the store is going to be nonunion. Hanley stated that I think we
have a problem. You know you disagree with me and I disagree with you. Victor then told 30
Hanley that he should call Roberto and talk to him, since he is the owner of the Whippany store.
Shortly after this conversation Hanley had a conversation with Maniaci. Hanley informed
Maniaci that if Victor opens up a new store non-union without a contract, that the union was
going to picket the store Maniaci replied that why is he “breaking their chops.” Maniaci said why 35
are you harming the father, since it was his son’s store; and Roberto has only our store. Hanley
responded that it’s nothing personal, but if I let one go others will follow. He added “you know
what if I had 10 non-union Farmtastics in New Jersey.”
My Findings with respect to these conversations, is based on a compilation of the 40
credited portions of the testimony of Hanley, Victor Laracca, Maniaci, and Hicks and employee
Alan Hatten, both of whom heard Victor Laracca’s comments in his phone conversation with
Hanley.
I credit Victor Laracca, corroborated by Hicks, that Victor told Hanley that the Whippany 45
store was Roberto’s store, and that he (Hanley) should contact Roberto. Similarly Maniaci also
told Hanley that it was Roberto’s store. I therefore I do not credit Hanley’s testimony that he
didn’t know that the Whippany store was Roberto’s store at that time.
However, I do credit Hanley that Victor told him during this conversation that the Whippany store 50
was going to be nonunion, and that we cannot afford the union contract. I note that Maniaci’s
JD(NY)-42-15
15
testimony implicitly corroborated Hanley’s testimony in this regard inasmuch as Hanley told
Maniaci that if he (Victor) opens the store nonunion that the union was going to picket the store.
That testimony is supportive of Hanley’s testimony, that Victor informed that the store was not
going to be union. Further employee Allen Hatten recalled Victor telling someone on the phone
“there’s going to be a store and it’s not going to be unionized.” I find this testimony also 5
supportive of Hanley’s testimony in this regard.
Finally, I also rely on the fact, that as will be described made fully below it had been
decided that by the Laracca’s that the Farmtastic store would not be a union store, because
they could not afford the union contract. I therefore find it likely that Victor would have informed 10
Hanley of the decision when Hanley requested that the Farmtastic store recognize the union
and apply the contract.
D. The Opening of the Farmtastic Store
15
As detailed above, the Farmtastic store Whippany opened for business on May 7, 2014.
As also related above, the opening was delayed due to construction issues, it was expected that
it could be opened in February 2014, but additionally problems resulting from a failure to pass
inspection due to grease trays and separation of wastemaster and trash caused additional
delays to rectify these deficiencies. Finally, the problems uncovered in the inspection were 20
corrected, all fees due to the township were paid, and RL Markets were permitted to open the
store on May 7, 2014.
As also detailed above, the Cedar Knolls store operated by Oliva closed on February 22,
2014, and left the premises on March 31, 2014, after disposing of equipment and cleaning out 25
the store pursuant to the order of the Judge.
According to testimony of Roberto Laracca, he initially believed that the Whippany store
would be opened much sooner than May of 2014, but construction delays, including a final
failure to pass final inspection by the Township, caused the opening to be delayed until May 7, 30
2014.
Roberto testified that he had a website set up for hiring of staff in early 2012, and
received a number of applications. He asserts that he in fact hired a number of cashiers from
the website, in 2012, but never completed the process of the hiring since the construction 35
delayed the opening and all the applicants were students, whose availability was uncertain.
Respondent did not produce any job applications or any documentation evidence reflecting the
alleged hires, although it was subpoenaed by the General Counsel.
Prior to the closing of the Cedar Knolls store sometime in January of 2013, Bruce 40
Shivas, who had been deli-manager for Oliva at the Cedar Knolls store had conversations with
Victor Laroacca about the problems Victor was having with the landlord. Victor informed Shivas
that he was in discussions with about extending the lease on the store with the landlord, and the
landlord is resisting, and they had not reached any agreement. Victor also told Shivas that if he
could not extend the lease he would have to close down the store. Shivas testified that the Rite 45
Aid store which is in the mall had already closed because the landlord wouldn’t renew its lease.
When Shivas found out that the store would be closing in mid-February of 2014, he
approached Adam Shapiro, the store manager at Cedar Knolls. Shivas was aware that the
Whippany store was going to open up and that it was going to be named Farmtastic, and that 50
Roberto was going to be the owner of that store. Shapiro ask Shivas what he was going to be
JD(NY)-42-15
16
doing in view of the fact that Cedar Knoll was closing. Shapiro told Shivas that he Shapiro was
probably going to go over there as manager. Shivas replied that in order for him to take a
manager job, he would need a decent wage and insurance. Shapiro answered that if he knew
anything he would let Shivas know.
5
A couple of days before the Cedar Knolls store closed, in late February of 2014, Roberto
later approached Shapiro and asked him to be the store manager at the Farmtastic store.
Roberto told Shapiro that he had done a good job managing the Cedar Knolls store for Victor
and although he (Roberto) didn’t know when the store would open if Shapiro could hang on a
little while, Roberto would hire him as manager. Shapiro responded negatively at first. He told 10
Roberto that he wanted to get out of the supermarket business, and was considering buying a
Snyder’s pretzel route. Shapiro added he was tired of the supermarket business, and was very
upset about the Cedar Knolls closing. Shapiro noted that he had been employed at that store
even before it was taken over by Victor, when it was owner by the previous Foodtown owner.
15
Over the next few days, Roberto sent texts to Shapiro, asking him to reconsider, and
telling him that he really wanted Shapiro to come to work at Farmtastic . During this time,
Shapiro also received texts from Daniell Laracca with whom Shapiro was friendly, asking him to
accept the offer to be the manager at Farmtastic.
20
Shapiro then discussed the issue with his father and his wife. His father gave his
opinion that the Snyder’s Route was very expensive, around $300,000, and pointed out that
Shapiro’s son is only 6 or 7 years old. Shapiro’s wife suggested that he should accept the job
as manager, and if it didn’t work out, he could go buy a Snyder’s Route.
25
Shapiro was at that point still working at Cedar Knolls, helping out with the shutdown of
the store. Shapiro then discussed the issue with Victor. Shapiro told Victor I guess you know
that your son offered me a job at his store. Victor replied that he knew. Shapiro told Victor the
he wanted to buy a Snyders Route, and informed him of what his father had said to him. Victor
responded that there is always going to be a Snyder’s Route available, and added that Shapiro 30
loves this business, it is in Shapiro’s heart and in his blood and that Snyders is a whole different
business. Victor said, that Shapiro should do what he wants to do, but that Victor didn’t think it
was a bad idea to accept the position as manager at Farmtastic.
After that conversation, Shapiro spoke to Roberto and informed him that he would 35
accept the job. Roberto asked Shapiro what salary he was making at Cedar Knolls. Shapiro
told him his salary, and Roberto said that he would offer Shapiro the same salary at Farmtastic,
and the same benefits, including health insurance. Roberto told Shapiro that he didn’t know
when the store would be opening and he would get back to Shapiro when he knew more. They
didn’t discuss hiring of staff at that time.40
Over the next 2 months, Shapiro received phone calls from a number of Cedar Knolls
employees, who had been laid off, and who informed Shapiro that they had applied on line for
positions at the Farmtastic store in Whippany. Shapiro confirmed to these employees which
included both employees in the Local 464 bargaining unit , as well as employees in the local 45
1262 bargaining unit that he was going to be the store manager at Farmtastic, and that he
would get back to them when the hiring process was ready to begin.
Shapiro then went on unemployment, as did a number of the other former Cedar Knolls
employees. Some of them obtained jobs at other supermarkets50
JD(NY)-42-15
17
In early April of 2014, Roberto informed Shapiro that the store would be opening soon,
and they went down to the Whippany store to discuss staffing. Shapiro looked over the store
and talked with Roberto about staffing and recommended how many and which employees he
would need. Shapiro had looked over the online applications and had as noted spoken to a
number of Cedar Knolls employees on the phone, who had expressed interest in working at 5
Farmtastic. Roberto informed Shapiro that he was just starting out, and “I can’t give the world”
to the employees. Shapiro replied that he would look at it, and see what he can do. Thus
Shapiro determined what salaries to offer the employees, as well as the benefits. Shapiro
asked Roberto about health care and Roberto replied that he would offer health care only to full-
time employees. Roberto also informed Shapiro that the store was not going to be a union 10
store.
Later on in April, Shapiro began interviewing prospective employees for jobs at
Farmtastic. He began by hiring his department heads, the managers, and assistant managers.
After hiring this group of employees, he moved on to the hiring of the remainder of the staff, 15
which involved a number of part time employees
When he interviewed applicants both for positions in the Local 1262 and the Local 464
unit, Shapiro told them the salary that Farmtastic would be offering, what the benefits would be,
sick leave, vacations, and that health care should be provided only to full-time employees. 20
Shapiro informed all applicants that the store was going to be nonunion. Most of the applicants
accepted Shapiro’s offer of employment at the terms that be offered them. A couple of
employees didn’t accept. For example, Joseph Harris the seafood manager at Cedar Knolls did
not accept the offer Shapiro asked to offer to offer the seafood manager position to Catherine
Jaconetta, who had be a meat wrapper at the Cedar Knolls store.25
Edward Campbell had been the meat department manager at Cedar Knolls, but he also
declined Shapiro’s offered to work as meat manager at the Whippany store. Shapiro offered the
meat manager position to Ricardo Lopez who had been employed at Cedar Knolls as a meat
cutter. Lopez accepted the job.30
Allen Hatten was employed at the Cedar Knolls store as a part-time employee, on the
night shift. Hatten had been previously employed at the Whippany store, when it was a
Foodtown, prior to its closing at that location, when it was taken over by Pathmark. Hatten then
he became employed at the Cedar Knolls store. He was initially employed at the Cedar Knolls 35
Foodtown, when it was owned by the prior owner before Victor Laracca took over the store.
Hatten had been a full-time employee with the prior owner, but then switched for family reasons
to part time, before Victor Laracca took over ownership of the store. Thus, he was a part time
employee, with respect to employment at Cedar Knolls.
40
When Hatten interviewed with Shapiro for a position at Whippany, Shapiro offered
Hatten the position of assistant deli manager. He offered Hatten a salary of $15.30 per hour,
which was the same salary that he was making. Hatten replied that the salary was not enough.
Shapiro responded that Hotten would be getting insurance from Farmtastic. Hatten replied that
he doesn’t need insurance, since his wife has insurance. Hatten suggested a salary of $16 per 45
hour. Since Hatten was not going to need insurance, and because Shapiro believes that he
was a good employee, and should receive a raise for becoming assistant manager, Shapiro
agreed to Hatten’s request for a salary of $16 per hour.
Shapiro also informed Hatten, as he did all other employees whom he interviewed, that 50
the Farmtastic store at Whippany was going to be nonunion. Hatten accepted the job. Shapiro
JD(NY)-42-15
18
testified that he believed that some of the Cedar Knolls employees who refused to accept his
offers of employment at Whippany, did so because he told them that it would be a nonunion
store.
Ultimately Shapiro hired nine former Cedar Knolls employees from the Local 464 5
bargaining unit.
Carol Demarsico
Alan Hatten
Catherine Jaconetta10
Ricardo Lopez
Pharins Paoulante
John Sagareso
Bruce Shivas
Robert Taylor15
Mark Salgado
The total complement of employees in the Local 464 unit at Cedar Knolls was union 12
employees.
20
The Cedar Knolls store included 20 employees in the Local 1262 bargaining unit, which
included grocery, bakery, front end, and produce employees as well as Patti Hicks. The record
reflects that 10 of these employees were hired by Farmtastic, including Tom Bleaken the
produce manager and Vincent Varolo the bakery manager.
25
Patti Hicks as noted above was and still is the bookkeeper for V&V Oliva and RL
Markets, but she has never been paid by or on the payroll of ML Markets or Farmtastic. Hicks
was a longtime employee of Vincent Laracca’s stores, starting out at the Newark store owned
by Vincent on 6th Street, and then was employed at the Lake Hiawatha store and V&V and the
Cedar Knolls store under Oliva. According to Hicks, she was a member of the Local 1262 30
bargaining unit at Lake Hiawatha and also she was the shop steward. She moved the office
where she worked at Cedar Knolls in 2005. Hector was paid by V&V until 2005 and at that time,
after she began working at Cedar Knolls, she was paid by Sliva. After the Cedar Knolls store
closed, she began to be paid by V & V once again. Thus she has never been paid by RL
Markets and Farmtastic although once the Whippany store opened, she has been working at 35
that location, in the office, performing bookkeeping services for all three Laracca entities.
Daniella Laracca as noted above, assists Hicks in bookkeeping at the Farmtastic
location on a part-time basis, working for her twice a week for approximately 16 hours total per
week. While at Cedar Knolls, Daniella Laracca worked full time assisting Hicks with 40
bookkeeping tasks, work on all three companies business. When the Farmtastic store opened
Daniella Laracca was involved with running the juice bar at the store, which took up most of her
time at the store. There was no Juice bar at the Sliva, Cedar Knows Store.
Hicks received her health insurance from 1262, and according to Hicks is still receiving 45
health coverage from local 1262, every since the Cedar Knolls store closed.
Daniella Laracca receives health coverage through the company plan offered which
covers Victor Laracca, Roberto Laracca, as well as Adam Shapiro. Since the Farmtastic store
opened this coverage is paid for by V & V.50
JD(NY)-42-15
19
As I outlined above, Hicks in her capacity of bookkeeper for all three Laracca entities
would transfer funds from bank accounts from one entity to another, depending on where
money was needed during the time that all three entities were operating concurrently.
As also noted above, the Farmtastic store operated by RL Markets, opened for business 5
on May 7, 2014. The store had a Grand Opening on that day, which was attended by numerous
representatives from Allegiance, as well as the Laracca family.
The Grand Opening was covered by the Food Trade News, an industry periodical. The
issue contained a number of photographs with comments and headlines. The first page 10
contained a picture of Roberto Laracca, plus three Allegiance representatives. The text under
this picture reads as follows: Allegiance Retail Service New Farmtastic Market Banner debuted
earlier this month when the Laracca family opened its newest store in Whippany, New Jersey
The text then states “at the grand opening, Roberto Laracca of Farmtastic Market,” another list
the names of the three Allegiance representatives, and states that more photos are on L.T.D.15
Page 29 of the periodical is entitled, “New Allegiance Banner ‘Farmtastic Market’
Unveiled by Laracca Family in Whippany, New Jersey The page then includes 10 pictures of
representatives of the Laracca family along with various Allegiance officials. The first picture
consists of five Allegiance representatives, with the following text next to it. “Allegiance Retail 20
Services’ new Farmtastic Market debued earlier this month when the Laracca family opened its
newest store in Whippany N.J. at the site of the former Pathmark unit. On hand to make sure all
runs smoothly on opening are Allegiance Retail Services (1-R),” and then named the four
Allegiance officials in the picture.
25
The next picture is of Victor Laracca and Gino Palummo of Nebraskaland. The text
reads, “Victor Laracca of Farmtastic Market is joined by Gino Palummo of Nebraskaland. Below
that is another picture with Victor Laracca and an Allegiance representative. The text says,
“Tony Anelo of Allegiance Retail Services chats with Victor Laracca of Farmtastic Market.” Next
to that picture, is a picture of Roberto Laracca with two representatives from Imperial 30
Distributors. The text reads, “Imperial Distributors’ Ron Ralston and Dave Dulude congratulate
Farmtastic Roberto Laracca on the new store.” Another picture consists of Daniella Laracca
and two Allegiance representatives plus a representative of Bimbo Bakeries. The text states
that “this foursome features Daniella Laracca, Farmtastic Market,” and then names the other
representatives in the picture.35
After the Farmtastic store opened, Victor Laracca used the Whippany office, and
conducted business for V & V and to some extent Oliva from this office. Victor did not pay any
rent to RL Markets for use of that office.
40
As I have noted above, V & V, Oliva, and the Laracca family paid money to RL Markets
and guaranteed loans from banks to RL Markets and at times paid loans directly to banks and
invoices to suppliers on behalf of RL Markets. While Hicks and the Laraccas contend that there
were loans that were supposed to be paid back, no documents were presented, which reflected
any of these loans, their terms, when they were to be paid back, or what interest rate if any, was 45
to be paid on these loans by RL Markets. The record does reflect that Oliva’s 2012 tax return
states under a listing of Current Assets, “loan – RL Markets $548,948.”
Victor Laracca as detailed above shared an office at the Farmtastic Store with Roberto
and Hicks, and was there on a daily basis. He would walk around the store and give some 50
JD(NY)-42-15
20
instructions to employees, such as sweep the floor, clean aisles, or instruct employees where to
unload deliveries.
Victor would also make suggestions to managers, particularly Jaconetta, the seafood
manager, about products, product placement, what to order, most of which she would follow, 5
since she was aware that Victor was very experienced and knowledgeable about seafood and
she was inexperienced in that department, having worked previously in the meat department as
a meat wrapper.
Jaconetta was aware that Roberto was the owner of the store, and not Victor, and that 10
her day-to-day supervisor was Shapiro. Other Farmtastic employees who testified, also clearly
were aware that Roberto was the owner of the store.
Local 464 put up a picket line on the first day that the Whippany store opened which,
picketing continued through the dates of the trial. The union made no effort or attempt to 15
organize the employees at the R L Market’s Farmtastic Store. Nor did the Union ever contact
Roberto Laracca or make a demand of Roberto that RL Markets recognize the Union or apply
the contract to its employees.
The Union did as reflected above filed a charge with the Region on June 5, 2014, 20
alleging that Oliva and R L Markets as alter ego and a single employer violated Section 8(a)(5)
and (1) of the Act, by repudiating its union contract with the Union, and refusing to bargain with
the Union and refusing to honor its collective-bargaining agreement at the Whippany location.
III. Analysis and Conclusions25
It is alleged and asserted by General Counsel that Respondent R L Markets and
Respondent Oliva are alter egos and alternatively that the two entities constitute a single
employer. It is further alleged, that as consequence of these findings, the Respondent has
violated Section 8(a)(5) and (1) lf the Act, by refusing to recognize and bargain with Local 464 30
(the Union), as the collective-bargaining representative of its Whippany, New Jersey location,
and by refusing to apply the terms of its collective-bargaining agreement with the Union, to its
unit employees at the Whippany store.
The Board generally will find an alter-ego relationship when two entities have 35
substantially identical management, business purposes, operations, equipment, customers,
supervision, and ownership. Not all of these indicia need be present, and no one of them is a
prerequisite to finding an alter-ego relationship. Unlawful motivation is not a necessary element
of an alter-ego finding, but the Board also considers whether the purpose behind the creation of
the suspected alter ego was to evade responsibilities under the Act. See Diverse Steel, Inc., 40
349 NLRB 946, 946 (2007). McCarthy Construction Co., 355 NLRB 50, 51 (2012); E. L. C.
Electric, Inc., 359 NLRB No. 20 slip. op. 9 at (2012).
“Alter ego” and “single employer” are related but separate concepts. A.D. Conner, Inc.,
357 NLRB 154 slip op at 18 (2011). The factors considered in the analysis are similar with the 45
exception of motive. El Vocero, de P.R., 357 NLRB 133 slip op at 21 (2011). In assessing
single-employer status the Board focuses on four factors (1) common ownership as financial
control; (2) interrogating of operations; (3) common control of labor relations; (4) common
management, Rogan Bros. Sanitation Inc., 362 NLRB 61 slip op at 3 (2015); Spurlino Materials
LLC, 357 NLRB 126, slip op at 30 (2011). As with alter ego status, no single factor is controlling 50
and not all need be present; in order to establish a single employer status. It ultimately depends
JD(NY)-42-15
21
on all the circumstances. Carr Specialties, 358 NLRB No. 165 slip op. at 11 (2012); Newark
Electric, 362 NLRB No. 44 slip op at 10 (2015). In analyzing both single employer and alter ego
status, the Board also places considerable reliance on the absence of an arm’s-length
relationship found among seemingly independent companies. Rogan Bros., supra 362 NLRB at
3; Newark Electric, supra 362 NLRB at 10; Spurline Materials, supra, 357 NLRB at 8-9; Diverse 5
Steel supra, 394 NLRB at 349 NLRB at 951; GRC Painting, 346 NLRB 207, 221 (2006); Carr
Finishing Specialties, 358 NLRB No. 165 slip op. at 11 (2012); Lebanite Corp., 346 NLRB 748
(2006); Shane Steel Processing, 353 NLRB 522 (2009); A & P Brush Mfg. Corp., 323 NLRB
303, 308 (194?)); Denzil S. Alkire, 259 NLRB 1323, 1324–1325 (1982); Blumesfield Theatres
Circuit, 240 NLRB 206, 216 (1997). 10
In assessing both the alter ego and single-employer relationship between the entities, I
initially note the Food News issue, an industry periodical which covered the Grand Opening of
the RL Market Farmtastic store in Whippany, in early May of 2014. The text under the picture of
Roberto Laracca with several Allegiance representatives read as follows: “Allegiance Retail 15
Service New Farmtastic Market debuted earlier this month when the Laracca family opened its
newest store in Whippany, N.J.” Later on in the issue, several pictures were shown with
members of the Laracca family, Victor, Roberto and Daniella Laracca along with different
representatives of Allegiance or other industry officials. The text identify, Victor, Roberto and
Daniella as representatives of Farmtastic Market and the page is entitled, “New Allegiance 20
Banner ‘Farmtastic Market’ unveiled by Laracca family in Whippany N.J.”
These statements in the Food News quarterly depict the evidence disclosed on this
record, that the Farmtastic store in Whippany was and is part of the Laracca family business,
and that the entities are alter egos, and a single employer.25
While Roberto is the owner of R L Markets and Victor is the owner of Oliva, identical
ownership is not required in order to establish alter ego status of those companies. The Board
has repeatedly held that ownership in different companies by members of the same family
constitutes substantially identical ownership, sufficient to support a finding of alter ego status. A 30
& P Brush, supra 323 NLRB at 308; (mother and son) Midwest Precision Heating & Cooling,
341 NLRB 435 (father and son); Alexandra Painting Inc., 344 NLRB 1346, 1353 (2005)
(husband and wife), Fallon Williams, 336 NLRB 602, 603 (2001) (husband and wife); Industrial
TurnAround Corp., 321 NLRB 181, 184, 187 (1996) (husband, wife, and brother); AC Electric,
333 NLRB 987 1001 (2001) (husband and wife); Goldin Feldman, Inc., 295 NLRB 359, 372 35
(1989) (father and daughter); MacDonald Ready-Mix Concrete, 246 NLRB 152, 154 (1979)
(father and son).
Furthermore, Victor, Josephine and Daniella Laracca used their personal and business
assets to secure the financing for the Whippany store. The evidence discloses that absent the 40
family financial backing, and assistance in obtaining loans, Roberto Laraaca would not have
opened the Farmtastic store in Whippany. E.L Electric, supra 359 NLRB at 9 (Establishment
and survival of alter ego company dependent on other company, although ownership was not
the same); Goldin Feldman, supra, at 295 NLRB 41 at fn 3. (alter ego status found where new
company would have had severe difficulties in continuing in business had it not been for the 45
assistance of father in obtaining loans for new company, and willingness to accept late
payments on outstanding loans to father’s company; Board concluded that father continued to
exercise financial contract over new company and in fact to, very livelihood was dependent on
father’s ability and willingness to negotiate with the bank and provide financial guarantees that
allowed the bank to enter company’s line of credit). 50
JD(NY)-42-15
22
The facts in Goldin Feldman, supra, are nearly identical to the instant case. But for the
loans to R L Market, which were negotiated by Victor and secured by personal and business
assets of Victor, as well as his wife and daughter, R L Market would not have been able to
survive and the store would never have been opened. Thus the R L Market, Whippany store is
simply another Laracca family supermarket and is financially indistinguishable from Victor’s 5
other supermarket operations, even though Roberto’s name appears on the corporate and
financial documents as the sole owner of RL Markets.
The business propose and operations of the Cedar Knolls and Whippany stores are
substantially the same. They were both supermarkets, selling Foodtown products (although not 10
under the Foodtown banner), with delicatessen, produce, seafood and meat departments, as
well as frozen foods and other products.
Both stores were members of the Allegiance Corporation, which dictate that the stores
use the same purveyors, merchandising, and marketing mechanisms, including circulars and 15
sales items, and technical support. The product line at the Whippany store is substantially the
same to that maintained at Cedar Knolls. To its customers, employees, union agents, and
owners of other supermarkets, the Whippany store appears nearby identical to the Cedar Knolls
store.
20
The Farmtastic store in Whippany is only three miles away from the Cedar Knolls store
and in the same township. Consequently it serves the same customers. Indeed, some
employees hired by Farmtastic for work at the Whippany store, had worked that location when
the store was operated as a Pathmark Supermarket. Thus RL Markets and Oliva conduct the
same business in the same market and have common customers. Industrial TurnAround Corp.,25
supra 321 NLRB at 187; Sobeck Corp., 321 NLRB 259, 267 (1996); Fugazy Continental Corp.,
265 NLRB 1301, 1302–1303 (1982); International Harvester, 247 NLRB at 791, 798 (1980).
Notably, in this regard, Victor testified that he used to live in Whippany, coached the
soccer team there, and was well known in the community. Further, when the Cedar Knolls store 30
went bankrupt, he was urged by residents of Whippany to take over the store, and open up the
supermarket. This was part of his motivation for deciding to do so and to purchase the assets
and open the store as an LLC under the name Oliva.
The testimony of Victor Laracca demonstrates his involvement in the management and 35
decision making of RL Supermarkets, and that he considered himself to be an integral part of its
operations. He continually used the pronoun “we” to refer actions taken regarding the store’s
renovations and its financing. Indeed, the record reflected that Victor was the primary
representative of RL Markets in dealing with the architect, landlord, the construction company
and the banks. I note in this regard, the record discloses that emails between Victor the 40
contractor, sent by Hicks on Victor’s behalf, discussed the plans for the construction and the
revisions. I note that Sarkasian and on behalf of Colds Knoll emailed Hicks on 3/29/12, asking
“could you get Victor to give you the name he wants to use on the new paperwork for the new
store.” Hicks responded that RL Markets is the company name and Roberto, the responsible
party and Farmstastic the store name. Further, Victor used the first person “I” when stating he 45
was considering selling V & V in order to satisfy RL Markets debts which demonstrated that he
was and is the ultimate decision maker for all three entities. See Johnstown Corp., 313 NLRB
170, 171, 1993 enfd. in relevant part, 41 F3d 141 (3d Circuit). (Finding that a witness’s use of
pronoun “we” demonstrates that he was an important hand in decision making in new company,
despite his testimony that he had no involvement in operating.)50
JD(NY)-42-15
23
Similarly, the record establishes that Sharon Shepard, the deli manager at V & V’s Lake
Hiawatha store, had heard about three years before the Whippany store opened, that the
Laracca’s were opening a store in Whippany, New Jersey. Shepherd told Roberto, who at the
time was the store manager at V & V that she had heard that they were opening a new store in
Whippany. Roberto answered “yes, we are.” A year later, Shepherd asked Roberto if the new 5
store in Whippany is going to be Foodtown and is it going to be nonunion? Roberto replied that
the store is not going to be a Foodtown and it will not be a union store. Over the next year,
Shepherd had several conversations with Roberto about the Whippany store and also how
things were going and when it would be opened? Roberto answered “we ran into problems and
it’s going to be open soon.” The record evidence of Hick’s intermingling of funds amongst the 10
accounts of the three Laracca business entities; demonstrate that the financial management of
the RL Market Whippany store is identical to the financial management of Oliva and V & V.
Further, the lack of arms-length negotiation that attended the extensive comingling of funds, the
lack of interest charged on monies provided by one company to the other is also significant.
Patti Hicks has never been paid by R L Markets, but only by V & V and Oliva during her 15
employment with the Laracca family enterprises. Yet she performed bookkeeping services
along with Daniella Laracca for R L Markets during the entire time of R L markets, from its
formation in 2011, and continuing after the store opened in May of 2014. Financial
management for the Farmtastic Whippany store, through his long time bookkeeper Patti Hicks,
assisted by Daniella LaRacca, who performed bookkeeping for all three Laracca supermarkets, 20
using the same financial programs, on the same computer, and in the same physical location.2
The above is further demonstrative of the interrelation of operations between the entities, and
support for any conclusion as detailed above, that the Whippany Farmtastic store was part of
the Laracca family business.
25
The record reflects that the financial management of both stores is substantially
identical. Victor controls the financing, the lack of any documentation showing the loans and
their details from one company to the other, along with payments made directly by Oliva and V
& V on behalf of R L Markets show that the Whippany store was simply substituted for Cedar
Knolls as one place of a large family business operation ran by Victor Varacca. Crossroads 30
Electric Inc., 341 NLRB 1502, 1506 (2004) (alter ego found where bookkeeper was performing
bookkeeping functions for both companies). A & P Brush, supra, 323 NLRB at 208 NLRB at
208 (Extensive involvement of family the establishment of new business indicates alter ego
status, since mother retaining financial interest in success of failure of new company although
she was not an owner or manager of business). Id. Midwest Precision Heating & Cooling, 341 35
NLRB 435, 437 (2004) Lack of arms-length transition between companies. Sons paid some
money on note for purchase of assets from fathers companies, but rest was forgiven, making
transfer of assets essentially an inheritance Carr Finishing Specialties, supra, 358 NLRB at,
alter ego status found where lines of responsibility crossed with comingling of funds, where one
person handled financial obligations for both companies, and paid obligations of one company 40
from the account of the other company. E.L.C. Electric, supra, 359 NLRB at 359 NLRB at
(finding lack of arms- length business relationship where assignments to use materials were
merely verbal, never reduced to writing, no interest was paid on loans and unpaid rent was
never collected.), A.C. Electric, supra, 333 NLRB at 1001 (less than arm’s-length transaction
regarding transfer of rights to equipment, vans sold some well below market value, and failure to 45
pay anything for start up tools and equipment); Sobeat, Corp., 321 NLRB 259, 267 (lack of
arm’s-length dealings coupled with accommodations to family interests, transactions among
two companies and family members were for all practical purposes matter of Frank Sobeck

2 The physical location changed when Cedar Knows changed, and Hicks moved to the Whippany store where the
bookkeeping for all stores was conducted.
JD(NY)-42-15
24
dealing with himself). Both firms used the same accounting and law firms. SRC Painting supra,
346 NLRB 721 (significant lack of arm’s-length relationship. No lease documents or rent paid
for space. No documentation of loans between companies, and no interest paid on loans.); El
Vocero De Puerto Rico, Inc., 357 NLRB slip op. at 133 fn. 3; slip op. at 23
5
Operational Management of the Whippany store rested primarily with the same
individuals who ran the Cedar Knolls store. Construction and renovations were handled by
Victor, who also handled lease negotiations and a subsequent rent settlement judgment with the
landlord, which Victor signed on behalf of RL Markets. Daily retail operations at Whippany were
controlled primarily by Adam Shapiro who ran Victor’s Cedar Knolls store for 10 years until it 10
closed in February of 2014. When Shapiro was given control to set wage rates and benefits for
the RL Markets employees, except for health benefits, which was decided by Roberto, who
concluded that he would furnish health benefits only to full-time employees.
The majority of the department heads for all departments retained their positions at 15
Whippany. A number of former Cedar Knolls employees were hired at the Whippany store, and
most significantly a majority of Farmtastics Whippany employees in the Local 464 bargaining
unit were former employees of the Cedar Knolls store of Oliva, who were directly contacted by
Adam Shapiro and interviewed by Shapiro, as soon as the Whippany store was ready to open.
20
As I have noted above, the Board does consider whether one entity was created by the
owners of the first for purposes of evading labor responsibilities, in its alter ego analysis.
However the Board has consistently held, supported by a majority of circuit court of appeals,
that such a motive is not a requirement for finding alter ego status. Newark Electric, 362 NLRB
44 at 10, Fallon Williams, 336 NLRB 602 fn7 (2001); Johnstown Corp., supra, 313 NLRB 170. 25
Here Respondents contend that RL Markets was not created, in order to avoid union obligations
to the Union, inasmuch as RL Markets was formed in 2011, and that they intended to operate
both stores at the same time. It further argues that it did not intend to choose the Cedar Knolls
store, and was fighting with the landlord to renew its lease, until it was forced to close in
February of 2014, when the landlord refused to renew the lease.30
In view of the above, I cannot find that the creation of RL Markets was motivated by an
intent to avoid union obligations. However, since as noted, it is not essential for such a finding
to establish alter ego status, and I conclude that the facts here are sufficient to prove that RL
Markets and Oliva are alter egos. 35
The facts are as follows: (1) the RL Markets, Whippany store was secured by the
Laracca family assets; (2) Victor Laracca oversees the ongoing financial operations of all three
Laracca stores; (3) the Whippany stores hired most of the Cedar Knolls managers and
supervisors, a substantial portion of the Cedar Knolls employees, including a majority of the 40
Cedar Knolls employees; (4) the Whippany store is managed and on a day to day basis by
Adam Shapiro, the store manager at Oliva, who hired all the RL Markets employees and
determined their salaries and benefits; (5) the employees perform substantially the same tasks
they performed in Cedar Knolls at the Whippany store, operate in the same township, not 3
miles from the former Cedar Knolls location of Oliva, using similar equipment. Thus RL Markets 45
is engaged in the same business with the same business purpose, and to a significant extent,
the same customers. Sobeck Corp., 321 NLRB at 267; SRC Painting, supra 346 NLRB at 721;
Fugazy Continental Corp., 265 NLRB 1301 (1982); (6) the lack of arm’s-length transactions

3 Alter ego status found, where, during the first year of the new company, similar to the existence of RL Markets
here was “almost entirely dependent on the continuous transfer of funds and in kind contributions” from the original
company.
JD(NY)-42-15
25
between the entities, particularly the comingling of assets, payment of bills by one entity for the
other’s obligations, the lack of documentation for loans, for no interest on loans, free rent for use
of office, and common use of bookkeepers. El Vocero De Puerto Rico, supra 357 NLRB at 22.
(New company undercapitalized also been dependent on continuous transfer of funds and
contributions from other company, transfers without documentation, and free office space 5
supplied); Carr Finishing Specialties, Inc., 358 NLRB 165 at 11 (Comingling of books);
Crossroads Electric, Inc., 343 NLRB 1502, 1506 (2004). (Bookkeeping operations performed for
both companies, being paid only by one company); E.L.C. Electric, Inc., 359 NLRB at 9
(Financial assistance to new company no interest on loans, tenant without collecting rent. Thus
assistance received from company, without which new company have never been 10
established or able to as a viable business). Similarly, RL Markets without the financial and
other assistance from Victor and his family and other businesses, would never have been
established or been able to survive as a viable business.
In these circumstances, I conclude that the evidence is sufficient to establish that RL 15
Markets was and is an alter ego to Oliva, and the change involved “a mere technical change in
the structure of identity of the employing entity without, any substantive change in its ownership
or management.” Howard Johnson Co. v. Detroit Joint Executive Board Hotel & Restaurant
Employees, 410 NS at 244, 254, no. 5 (1974). AD Conner, 357 NLRB at 28 (2011).
20
General Counsel argues that although the creation of RL Markets, may not have been
motivated by an intention to avoid Oliva’s obligations to the union, inasmuch as Oliva initially
intended to remain open, ever when RL Markets would be in full operation, that by the time
Oliva closed and RL Markets opened, the facts were different. Thus, by October of 2013, Oliva
was notified by the landlord that its lease was not going to be renewed, and it needed to vacate 25
the premises. Thereafter, Oliva was negotiating with the landlord only on the terms of a month-
to-month extension. Thus the opportunity was created to move the entire operation to
Whippany. Victor testified, “we closed the store down and now the Whippany store is not ready
yet . . .”, because “we had this problem with the sewage.” Thus General Counsel argues, and I
agree that but for the unforeseen delays in getting approvals from the Hanover Sewage 30
Authority, the transition from Cedar Knolls to Whippany would have been seamless. Further,
Victor knew that the imminent opening of the Wal-Mart near the Cedar Knolls would preclude
the landlord from offering new long term lease, and Respondents failure to perform any hiring
for Farmtastic in December of 2013 or January of 2014, even though they expected to, that the
store would open late January, demonstrates that Respondents expected the Cedar Knolls 35
employees to simply move to the Farmtastic, Whippany store as soon as the Cedar Knolls lease
expired.
The evidence overwhelmingly points to Respondents disdain for the Union contract.
Both Roberto and Victor testified that they did not like the financial terms of the new contract, 40
they thought it was too much, and they could not afford it. Victor admitted that he did not want
to sign the union contract that had been agreed to in 2012, on behalf of Oliva, although he did
eventually agree to sign it and be bound by it for his supervisors. Victor told Piscatelli during
negotiations that he should not be required to pay the wages and benefits on the new contract,
and Maniaci was told by Victor that he didn’t want to go ahead with the contract for his 45
companies, because he wanted a better deal than the contract provided.
Moreover, Victor informed Hanley of Local 464 that the Whippany store would be
nonunion, Roberto also informed Adam Shapiro when he hired him to be the store manager,
and also, informed employee Sharon Sheppard, an employee, of another part of the Laracca 50
family business. Further, Shapiro, informed all of the employees whom he hired to work at the
JD(NY)-42-15
26
Whippany RL Markets, Whippany store, that the store would be nonunion when he interviewed
them.
It is also notable that the decision to open the store as a Farmtastic and not as a
Foodtown, was made in 2012, at around the time of the negotiations for the new contract, that V 5
& V and Oliva were not happy about signing. Victor and Roberto were both aware that if they
open the store as a Foodtown, the store would have been obligated to recognize the union and
apply the terms of the terms of the contract with Oliva, to the bargaining unit employees.
I therefore conclude that although the purpose and, the creation of RL Markets may not 10
have been to evade its responsibilities under the Act, it is clear that the Laracca’s (both Victor
and Roberto) did not desire union representation for the employees of RL Markets, and told its
employees and the union that fact. A & P Brush Mfg. Corp., 323 NLRB 303, 304 (1997); Mining
Specialist, Inc., 314 NLRB 268, 272 (1994). I find that the establishment and opening of RL
Markets was consistent with, a desire to maintain a nonunion operation A & P Brush supra at 15
307 (finding that although the purpose of the creation of sales company was because son
wanted to be his own boss and start his own business, mother owned old company retained
financial control success or failure of new company, provided financing for business, and new
company was intended to and was operated as a nonunion shop.)
20
Accordingly, based upon the above analysis and precedent I conclude that Oliva and RL
Markets were and are alter egos of each other.
As I have also noted above, I also conclude that Oliva and RL Markets are a single
employer. Such a finding is warranted, and viable, even absent a finding of alter ego status 25
between the companies. Rogan Brothers Sanitation, supra 362 NLRB 137. Emcor Group, Inc.,
330 NLRB 849 (2000).
As related above, the factors examined in sponsoring alter egos and single-employer
status are similar, except for the issue of motive.30
Further the lack of arm’s-length relationship between the entities is significant in the
analysis of both issues, it is particularly significant in determining single employers status.
Indeed the Board has repeatedly held that “the hallmark of a single employer is the absence of
an arm’s length relationship among seemingly independent companies.” Boliver-Tees, Inc., 349 35
NLRB 720 (2007) (single-employer relationship found where one company was located in
Mexico and the other in American, where financial exigencies of one entity met by the other);
RBE Electronics of S.D., 320 NLRB 80 (1995); Hydrolines, Inc., 305 NLRB 416, 419 (1991);
Rogan Brothers, supra at 3. Such lack of an arm’s-length relationship is demonstrated by
bookkeepers performance of payroll functions for both companies and by comingling of funds of 40
the two entities by one entity paying bills of the other, and by no interest loans and free rent, and
nondocumented transactions. Rogan Brothers supra at 4–-5 (controller same for bother entities,
checks issued to repay loans from one loans payroll directly from one company for debts owed
by other); Spurlino Materials, Inc., 357 NLRB 126 slip op at 7 (2011) (Controller run’s
accounting department for both companies); Carr Finishing, supra 358 NLRB at 165 (Funds 45
deposited from one company into account of another, and one company paid obligations of
another). Grane Healthcare Co., 357 NLRB 123 supra at 30 (2011) (Funds for purchase a new
facility jointly borrowed and guaranteed by number of entities by owners of entities.). Emcor
Corp., 330 NLRB 849 fn.1 (2000) (performed payroll functions for both companies, and
president of old company was involved in construction of new facility); Naperville Jeep/Dodge,50
357 NLRB 183 slip op at 18 (2012) (sales vehicles of balance between the two entities.);
JD(NY)-42-15
27
Emsing’s Supermarket, Inc. 284 NLRB 302, 304 (1987); enfd. 872 fn. 2 1229 (1984) (Finding of
single employer status is supported by propensity to operate both companies “in such a manner
that the exigencies of one would be met by the other,” showing the relationship was not at arm’s
length).
5
The fact’s here, are quite similar in these respects to the facts in the above cited
precedent, and strongly support single employer status between Oliva and RL Markets. Indeed,
the evidence of record supports the conclusion that I have above, so correctly characterized in
the Food News article, that RL Markets was another new store in the Laracca family business.
As I have detailed above, Victor and the Laracca family guaranteed RL Markets loans with 10
personal guarantees as well as with guarantees from Victor’s other business, V & V and Oliva.
The loans between the entities were not documented, and no interest was paid or offered for on
the loans, and no rent was paid.
V & V Oliva or Victor use RL Markets property to conduct business for Oliva and V & V.15
Patti Hicks was the bookkeeper for V & V, Oliva and RL Markets, alter egos she was
never paid by RL Markets. Funds were comingled among the entities, of RL Markets and bills
were paid directly by V & V and or Oliva. Victor although not an officer or director of RL
Markets, negotiated the lease for RL Markets, handled and negotiated the construction for the
new supermarket; and was involved in the architect plans for the configuration of the Whippany 20
store. Thus the facts establish that the relationship between RL Markets and Oliva appears to
be one of a close family rather than one between independent companies. Blumenfeld
Theatres Circuit, 240 NLRB 206, 216 (1979) (Office furnished for official use of company without
compensation, even though official performed duties for other company from that office).
25
Finally, I noted that Adam Shapiro, the manager for both RL Markets and Oliva,
performed the same day-to-day management responsibilities, that he had performed at Oliva,
while working at RL Markets. Shapiro was given the responsibility to determine the wage rates
and benefits for the RL Markets employees, (except for Health Benefits, which were decided by
Roberto). Shapiro interviewed and hired all the RL Markets emplyees, and is in charge of the 30
day to day disciplinary matters and issued. Accordingly, the common labor relations aspect of
simple employee status is satisfied.
Accordingly, based upon the foregoing analysis and precedent, I conclude that Oliva and
RL Markets are single employers.35
Having concluded, as I have that Oliva and RL Markets are alter egos and single
employers, it follows that the Respondents have violated Section 8(a)(5) and (1) of the Act, by
refusing to recognized and bargain with Local 464 as the collective-bargaining representative for
its unit employees at its Whippany facility, and by refusing to apply the terms of the collective-40
bargaining agreement in effect between Respondents and this union to its Whippany unit
employees. Newark Electric, supra, 362 NLRB 44 at 12; Carr Finishing Specialties, supra, 358
NLRB 165 at 12; SRC Painting, supra, 346 NLRB at 724; Concourse Nursing Home, 328 NLRB
692, 702–703 (1999).
45
Here the Respondents admit that Oliva was bound by the terms of the existing contract
with the Union. Respondents further admit that they have neither recognized the union as the
collective-bargaining representative for its employees employed at Whippany, nor applied the
terms of this contract to the bargaining unit employees, including wage rates and benefit
contributions.50
JD(NY)-42-15
28
Respondents argue that the union never organized the workers at the Whippany store
and did not request recognition. However, in an alter ego single-employer situation, as here,
the Union already represents the workers of the alter ego, single-employer company, and the
existing contract applies. Accordingly, the Union not required to request recognition.
5
Nonetheless, the record establishes that the union did make requests for recognition and
application of the contract to the Whippany employees, in Hanley’s conversation with Victor
Laracca in February of 2014. Victor’s response was that the store was going to be nonunion.
Further, the refusal to bargain charge filed by the Union is itself tantamount to a valid request for
recognition. Sterling Processing Corp., 241 NLRB 208, 212 (1988); Roberts Electric Co., 227 10
NLRB 1312, 1319 (1977).
Accordingly, based upon a foregoing analysis and precedent I conclude that
Respondents Oliva and RL Markets are alter egos, and or a single employer, and that it violated
Section 8(a)(5) and (1) of the Act by failing to recognize the Union as the representative of its 15
Whippany bargaining unit employees, and failed to apply the terms of its collective-bargaining
agreement to those employees, when it opened its Whippany store.
Conclusions of Law
20
1. The Respondents are employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
25
3. Respondent RL Markets is the alter ego of Respondent Oliva, and RL Markets and
Oliva are single employers, within the meaning of the Act.
4. By failing and refusing to recognize the Union as the collective-bargaining
representative of its employees at its Whippany, New Jersey location, employed in 30
the bargaining unit represented by the Union, and by failing to apply the unit
employees the collective-bargaining agreement between Respondents Olive and the
Union. Respondents have violated Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of Section 35
2(6) and (7) of the Act.
Remedy
Having found that the Respondents are alter egos and/or a single employer which 40
engaged in certain unfair labor practices, I shall order them to cease and desist and to take
certain affirmative action designed to effectuate the policies of the Act.
The Respondents shall be required to recognize and, on request, bargain with the Union
as the collective-bargaining representative of all employees in the unit. Respondents shall also 45
be requested to make whole the unit employees for any loss of earnings and other benefits
suffered as a result of the Respondents’ failure to apply the collective-bargaining agreement in
effect from March 18, 2012, to June 17, 2016, as prescribed in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New
Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical Center, 356 NLRB 8.50
JD(NY)-42-15
29
Finally, having found that the Respondent violated Section 8(a)(5) and (1) of the Act by
failing to continue in effect all the terms and conditions of their existing collective-bargaining
agreement by failing, since May 7, 2014, to make the contractually required contributions to the
Union’s fringe benefits funds set forth in the collective-bargaining agreement, I shall order the
Respondents to make all required benefit fund contributions since May 7, 2014, including any 5
additional amounts applicable to such funds as set forth in Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979). In addition, the Respondents shall reimburse unit employees for any
expenses resulting from the Respondent’s failure to make the required contributions to the
funds, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. Mem. 661
F.2d 940 (9th Cir. 1981), such amounts are to be computed in the manner set forth in Ogle 10
Protection Service, supra, with interest as prescribed in New Horizons, supra.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4
ORDER15
The Respondents, Oliva Supermarkets, LLC and RL Markets 1, LLC, Cedar Knolls and
Whippany, New Jersey, its officers, agents, successors, and assigns shall
1. Cease and desist from20
(a) Failing and refusing to recognize the Union as the collective-bargaining
representative of all employees employed at its Whippany, New Jersey store,
employed in the meat, poultry, fish, appetizer and delicatessen departments both full
and part time.25
(b) Failing and refusing to apply to unit employees he collective-bargaining
agreement covering the employees in the above unit, in effect from March 18, 2012,
to June 17, 2016.
30
(c) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.35
(a) Bargain in good faith with the Union as the exclusive collective-bargaining
representative of the unit employees.
(b) Make whole all bargaining unit employees and all benefit funds for any loss of 40
income contributions, or benefits, and for any expenses incurred in connection with those
benefit fund losses by those employees, in the manner set forth in the remedy section of this
decision.
(c) Preserve and within 14 days of a request or such additional time as the Regional 45
Director may allow for good cause shown provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records including an electronic copy of such records if stored

4 If no exceptions are filed as provided by Sec 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
JD(NY)-42-15
30
in electronic form, necessary to analyze the amount of backpay due under the terms of this
decision.
(d) Within 14 days after service by the Region, post at its facility in Whippany, New
Jersey, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms 5
provided by the Regional Director for Region 22, after being signed by the Respondents
authorized representative, shall be posted by the Respondents immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondents to
ensure that the notices are not altered, defaced, or covered by any other material. In the event 10
that, during the pendency of these proceedings, the Respondents have gone out of business or
closed the facility involved in these proceedings, the Respondents shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since May 4, 2014.
15
(e) Within 21 days after service by the Region, file with the Regional Director for Region
22 a sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondents have taken to comply.
20
Dated, Washington, D.C. December 18, 2015

Steven Fish
Administrative Law Judge
25

5 If this Order is enforced by the judgment of the United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an order of the National Labor Relations Board.”
JD(NY)-42-15

31
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail to refuse to bargain in good faith with the collective-bargaining
representative of our employees in the appropriate bargaining unit described below:
All employees employed at our Whippany, New Jersey facility, in the meat, poultry, fish,
appetizer and delicatessen departments, both full and part time.
WE WILL NOT fail and refuse to recognize and adhere to the collective-bargaining agreement
dated March 18, 2012, through June 18, 2016, by failing to pay contractually established wage
rates and failing to make contractually-required fund contributions to the unit described above.
WE WILL not in any similar manner interfere with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL make whole our employees for any losses they may have suffered as a result of our
refusal to honor the applicable collective-bargaining agreement by transmitting, with interest, the
contributions owed on their behalf to the Union’s funds.
WE WILL continue in force and effect the collective-bargaining agreement effective from March
18, 2012, through June 18, 2016.
WE WILL make whole all bargaining unit employees and all benefit funds for any loss of
income, contributions and for any expenses incurred in connection with these benefit fund
losses by those employees.
OLIVA SUPERMARKETS, LLC AND RL MARKETS 1, LLC
(Employer)
Dated By
(Representative) (Title)
JD(NY)-42-15
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
20 Washington Place, 5th Floor, Newark, NJ 07102-3110
(973) 645-2100, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/22-CA-130315 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (973) 645-3784.